BTK19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2021] FCCA 226

FEDERAL CIRCUIT COURT OF AUSTRALIA

BTK19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 226

File number(s):	SYG 1034 of 2019
Judgment of:	JUDGE STREET
Date of judgment:	23 February 2021
Catchwords:	MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether the Authority did not take into account relevant considerations – whether the Authority took into account irrelevant considerations – whether the Authority misapplied the relevant law – whether the Authority did not afford the applicant procedural fairness – whether the Authority misconstrued the applicant’s claims – no jurisdictional error made out – application dismissed.
Legislation:	Migration Act 1958 (Cth), ss 5AAA, 5H, 36, 473CB, 473DC, 473DD, 476
Number of paragraphs:	40
Date of last submission/s:	2 February 2021
Date of hearing:	2 February 2021
Place:	Sydney
Counsel for the Applicant:	In person
Solicitor for the Respondents:	Ms K Garaty HWL Ebsworth

ORDERS

SYG 1034 of 2019

BETWEEN:

BTK19

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

ORDER MADE BY:	JUDGE STREET
DATE OF ORDER:	23 FEBRUARY 2021

THE COURT ORDERS THAT:

1.The application is dismissed.

2.The applicant pay the first respondent’s costs fixed in the amount of $7,467.00.

REASONS FOR JUDGMENT

JUDGE STREET:

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Immigration Assessment Authority (“the Authority”) made under pt 7AA of the Act on 3 April 2019 affirming the decision of a delegate of the first respondent (“the Delegate”) not to grant the applicant a Safe Haven Enterprise visa.

2. The applicant was found to be a citizen of Sri Lanka and his claims were assessed against that country. On 13 November 2012, the applicant arrived in Australia as an unauthorised maritime arrival.

3. On 2 January 2013, the applicant participated in an entry interview. At the entry interview, the applicant claimed that he left Sri Lanka due to ongoing threats to his life from the Tamil Makkal Viduthalai Pulikal (“TMVP”) between 2003 and 2012. The applicant also claimed that it is because he declined the TMVP’s demands to work for their group that a TMVP member approached him at his workplace. The applicant also claimed that he was the leader of a young youth group and that is why the TMVP wanted him to join them for their election.

4. On 16 January 2017, the applicant applied for a Safe Haven Enterprise visa. The applicant provided a statement of claims in support of that application.

5. The applicant’s pupil’s record sheet identified him as a Hindu and paragraph 4 of the applicant’s statement of claims identified that he was a Tamil and a Hindu. There was nothing in the applicant’s statement of claims, however, that identified a fear by reference to his religion or by reference to the combination of being a Tamil and his religion.

6. On 8 January 2019, the Delegate found that the application failed to meet the criteria for the grant of a Safe Haven Enterprise visa.

7. On 11 January 2019, the Authority wrote to the applicant explaining that the application for review had been referred to the Authority for review and providing an attached fact sheet and practice direction, giving the applicant an opportunity to put on new information and submissions. The practice direction also explained the need to provide translations in respect of the information provided.

8. The applicant provided submissions and new information. The applicant asserted in the submissions that the Delegate had stopped him from giving evidence or information orally during the interview. The Authority expressly considered the applicant’s submissions. In paragraph 11 of the Authority’s reasons, the Authority referred to having listened to the interview and did not agree with the applicant’s contention regarding the Delegate’s conduct during the interview and considered that the two hour interview was thorough and an ample opportunity for the applicant to present his claims and additional detail.

9. The Authority noted that the applicant was legally represented at the time of the interview. The Authority noted that the Delegate’s concerns regarding the protection claims were put to the applicant and that at no point did the Delegate state that she did not believe the applicant or what the applicant had said and that the applicant was provided with a break to consult with his representative and, before the interview concluded, the applicant was given a further opportunity to provide additional information. The Authority also took into account that the applicant’s representative made oral submissions at the interview and the Delegate invited the applicant to provide any further information within a further seven days of the interview. The applicant requested an extension of time to provide the additional information but nothing further was received.

10. The Authority in its reasons identified the background to the applicant’s Safe Haven Enterprise visa application.

11. The Authority identified having regard to the material given by the Secretary under s 473CB of the Act.

12. The Authority identified new information and considered the same in accordance with the whole of the provisions of s 473DD of the Act and was not satisfied that the requirements of s 473DD of the Act were met.

13. The Authority summarised the applicant’s claims.

14. The Authority found that in 2003 the applicant was released by the Liberation Tigers of Tamil Eelam (“LTTE”) after two weeks and reunited with his family.

15. The Authority was not satisfied that the applicant was abducted by TMVP members, held at a training camp and subsequently escaped after four days. The Authority found that the applicant had contrived this abduction claim for the purposes of his protection claims.

16. The Authority accepted that Tamils such as the applicant would seek to be involved in campaign activities for the Tamil National Alliance (“TNA”) at the time of the election and may have been reluctant to show support of the TMVP. The Authority accepted that the applicant was involved in these relatively ordinary TNA activities.

17. The Authority was not satisfied on the applicant’s evidence that he was sought out and harmed because of his or his family’s refusal to politically support the TMVP. The Authority was not satisfied that the applicant was specifically targeted.

18. The Authority considered that the applicant sought to embellish his evidence to support his claim that he was targeted by the TMVP. The Authority was not satisfied that the intoxicated TMVP member who came to his uncle’s liquor store was a targeted attack. The Authority was not satisfied as to the applicant’s claims that he went to the TMVP office and was held for a few hours, questioned, threatened and slapped. The Authority found the applicant’s support for the TNA to have been minor and not sufficient to attract attention of the TMVP members.

19. The Authority referred to the applicant’s failed attempt to depart Sri Lanka in 2012 and claim that there is a warrant for his arrest for failing to appear in court to face charges relating to his illegal departure. The Authority referred to the applicant’s experience during the illegal departure being discussed at length during the Safe Haven Enterprise visa interview. The Authority referred to country information.

20. The Authority accepted that the applicant made a failed attempt to depart Sri Lanka and was found guilty of committing the offence of illegal departure. The Authority was satisfied that the applicant was processed in a group, found guilty by a Magistrate and served two weeks in prison. The Authority was unpersuaded by the applicant’s evidence that his illegal departure matter was ongoing when he departed Sri Lanka and did not accept that a warrant was issued in 2015 for his arrest, particularly when considered in light of country information and also the prevalence of fraudulent documents. The Authority was not satisfied that the applicant was released on bail. The Authority found that the applicant’s prior illegal departure matter had concluded and that the applicant had no outstanding arrest warrants or court hearings regarding the matter.

21. The Authority referred to it highly improbable that on the day of the election TMVP members came to the applicant’s house searching for him and that on account of this visit the applicant fled two months later.

22. The Authority also referred to the applicant’s claims that TMVP members came to his family home. The Authority found it difficult to believe that this would occur some three years later and was not satisfied that the claim is credible.

23. The Authority did not accept that the applicant was detained and assaulted by TMVP members in 2013 or at any other time.

24. The Authority was not convinced that the applicant fled Sri Lanka for fear of harm relating to the TMVP or any other group or the authorities.

25. The Authority identified the relevant law, including an attachment of the applicable law incorporated in its reasons by pagination.

26. The Authority was not satisfied that the applicant faced a real chance of harm on account of his past involvement with the LTTE, his ethnicity, his scarring, his political associations (including any such associates he may have in the future) or any further other factors in his or his family’s profile or circumstances.

27. The Authority was not satisfied that the treatment the applicant may encounter on return as a failed asylum seeker would amount to serious harm.

28. The Authority found that the applicant did not meet the requirements of the definition of refugee in s 5H(1) of the Act. The Authority found that the applicant failed to meet the criteria in ss 36(2)(a) and 36(2)(aa) of the Act. Accordingly, the Authority affirmed the decision under review.

    BEFORE THE COURT

29. These proceedings were commenced on 30 April 2019. On 21 June 2019, a Judge of the Court made orders providing the applicant an opportunity to file and serve an amended application, affidavit evidence and submissions. No such documents have been filed.

30. At the commencement of the hearing, the Court explained to the applicant the nature of the hearing and the application confirmed that he understood the nature of the hearing as explained by the Court.

31. The applicant in his oral submissions referred to the warrant and submitted that it was genuine. This was a matter that was the subject of express consideration by the Authority and the Authority gave logical and rational reasons for not accepting the warrant as genuine, as summarised above. No jurisdictional error arises by reason of this submission by the applicant.

32. The applicant also referred to being affected by reason of his sister’s death and contended that the matter was not looked at properly. The Authority identified, in considering the new information concerning the sister’s death certificate, that there was a significant omission given the seriousness of the claim by the applicant in the Safe Haven Enterprise visa interview and found that the new information did not meet the criteria under s 473DD of the Act. That adverse finding was logical and rational and was open to the Authority. No jurisdictional error arises by reason of this submission by the applicant.

33. The applicant’s submission that all the documents are genuine, in substance, invites the Court to engage in an individual merits review. This Court has no power to review the merits.

34. No jurisdictional errors were made out by reason of anything submitted by the applicant orally.

    GROUNDS IN THE APPLICATION

35. The grounds in the application are as follows:

    1. The second respondent made a jurisdictional error by using excessive authority in ignoring the respondent's failure to permit the Applicant to complete the response to or reply to the questions put to the applicant during the interview.

    Particulars

    The Applicant in his submissions to the IAA stated that "The delegate was interrupting me whenever I attempted to speak up and stopped me from speaking further about my detailed claims saying that She did not believe anything I said. Due to this reason, many valid, important and relevant facts were missed out during the interview". The delegate brushed off information as not important and requested the Applicant to only reply to her questions. The IAA used it's excessive authority in denying the fact that the second respondent did obstruct the Applicant from responding to the questions put to him during the interview. The IAA findings are legally unreasonable.

    2. The IAA applied the wrong test in making its decision and made a jurisdictional error by taking into account irrelevant considerations and reaching unsubstantiated conclusions relying on the delegate's findings.

    Particulars

    The IAA made an error as it failed to conduct a proper review of the decision but merely echoed the delegate's considerations. The Statement of Decision and Reasons of the IAA does not reflect a proper analysis and consideration of the evidence. The new information about the Applicant's brother's claimed abduction followed by torture and abuse was considered by the IAA as "unsupported claims to the IAA following the refusal of his SHEV application". This finding is arbitrary, capricious, without common sense or plainly unjust. The IAA made a jurisdictional error by acting beyond its power by taking into account irrelevant considerations, being unsubstantiated conclusions, assertions and assumptions as to various matters.

    3. The IAA made a jurisdictional error as it failed to consider and determine whether the applicant is a refugee for the convention reason of his religion and ethnicity combined.

    Particulars

    The IAA failed to note the continuing harassment, torture, abduction and murder perpetrated against the Tamils in eastern province and the Applicant being a Tamil would face the persecution on his return to his country of origin given that his sister committed suicide after being physically and sexually assaulted by the authorities and his brother was tortured and was forced to sign documents stating that he and the Applicant were LTTE cadres.

    4. The respondents failed to accord the Applicant procedural fairness and natural justice.

    Particulars

    The IAA rejected the Court document that was provided by the Applicant on the grounds that it "is in part written by hand in what appears to be the Tamil Language. An English translation has not been provided. The document appears to be signed by the District and Magistrate's Court Registrar. ..... ". The IAA, failed to request the Applicant to provide a translation of the document rather than to "question the reliability of the document." The IAA made an error in not accepting the English translation of the .

    Applicant's sister's death certificate as the translated copy of the death certificate was not provided with the copy of the original document and further refused to accept a copy of the Applicant's sister's obituary notice published by a newspaper with the picture of the Applicant's sister just because it was in Tamil Language. The IAA's finding must be based on 'and proceed by reference to "rationally probative evidence” rather than on mere "suspicion or speculation ''. The IAA should have provided the opportunity for the Applicant to provide an English translation of the documents in question, given that the Applicant had only 21 days to provide the submissions along with these documents the IAA. The IAA's finding is legally unreasonable as it appears to be arbitrary, capricious, without common sense or plainly unjust. 'A decision may also be legally unreasonable if it lacks an evident and intelligible justification'. The IAA failed to put adverse information to the applicant for comment.

    5. The IAA misconstrued and misunderstood the claims solely relying on the audio of the SHEV interview and thereby made a jurisdictional error.

    The IAA relied on the audio recording of the interview but failed to note that the behaviour, attitude and the conduct of the delegate towards the Applicant during the interview. The Applicant had to rely on the Migration Agent to intervene and the agent never intervened. The Applicant is of the opinion that the Migration Agent failed to act diligently in objecting to delegate's above behaviour and the delegate used that opportunity to obstruct me to provide my evidence in full during the interview. The Applicant's contention is that, the IAA ignored and failed to give consideration to the submissions made by the Applicant where it stated that the delegate interrupted whenever he attempted to answer and or stopped him from speaking further about details and the delegate's stating that she did not believe anything the Applicant said. The IAA was too rigid in applying its policies and did not have regard to the individual merits and circumstances of the Applicants' case at the time of the delegate's decision.

    GROUND 1

36. In relation to ground 1, it is apparent that the Authority did consider the applicant’s submissions in relation to what occurred at the time of the Safe Haven Enterprise visa interview and did not accept the applicant’s contentions as to what occurred during the interview and expressly referred to having listened to the whole of the reasons. The adverse findings by the Authority in rejecting the applicant’s contentions concerning what occurred before the Delegate cannot be said to lack an evident and intelligible justification as summarised above. Given the findings of the Authority after listening to the interview it was not legally unreasonable for the Authority not to exercise any powers under s 473DC of the Act. No jurisdictional error as alleged in ground 1 is made out.

    GROUND 2

37. In relation to ground 2, this, in substance, reflects disagreement with the adverse findings. There is no irrelevant consideration identified that the Authority took into account. There is no unsubstantiated conclusion identified. The adverse findings by the Authority were open for the reasons given by the Authority, which were logical and rational as summarised above. The brother’s information appears to be that referred to in paragraph 14 of the Authority’s reasons, considered under s 473DD of the Act, and the Court accepts the first respondent’s submission that it was open to the Authority to make observations concerning the reliability concerns in finding that the brother’s information did not satisfy s 473DD(a) of the Act. Further, there is no substance in the assertion that the Authority’s reasons were not an independent review, as required under pt 7AA of the Act by the Authority. The assertion of echoing the Delegate’s considerations is incorrect. There is no application of template reasons. The Authority’s reasons reflect a genuine intellectual engagement with the applicant’s claims and evidence. No jurisdictional error as alleged in ground 2 is made out.

    GROUND 3

38. In relation to ground 3, no claims were advanced by the applicant to fear harm by reason of his religion and ethnicity combined. No such claim fairly arose in the material before the Authority. Whilst it is correct the applicant identified his religion and his ethnicity, the applicant’s claims reflect a fear of harm in relation to his ethnicity. There is no failure by the Authority to consider an integer of the applicant’s claims. No jurisdictional error as alleged in ground 3 is made out.

    GROUND 4

39. In relation to ground 4, the IAA wrote to the applicant explaining in the practice direction the requirement for English-translated documents and the provision of submissions on new information. The applicant was given an adequate opportunity to provide information and was informed of the need for translation of the communication from the Authority. There was no legal unreasonableness arising from the Authority not giving the applicant a further opportunity to provide English translations of the Tamil documents. It was for the applicant to provide sufficient evidence to make out his case under s 5AAA of the Act. This is not a case in which there is an obvious, easily ascertainable material fact so as to give rise to a duty to make an inquiry to obtain further information. The Authority correctly identified the sister’s death certificate as being new information and found that it did not satisfy the requirements of s 473DD of the Act, which finding was open for the reasons given by the Authority. No jurisdictional error arose by reason of ground 4.

1. As the application fails to make out any jurisdictional error, the application is dismissed.

I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Street.

Associate:

Dated:       23 February 2021